903 F.

2d 752

52 Fair Empl.Prac.Cas. 1566,

53 Empl. Prac. Dec. P 39,934
Verna LEWIS, Plaintiff-Appellee,
v.
CITY OF FT. COLLINS; Barbara Liebler, Defendants,
Larry Estrada, Mayor; Steven Burkett; Richard Shannon;
Kelly Ohlson; Barbara Rutstein; Jerry Horak; Ed
Stoner; Susan Kirkpatrick, Defendants-Appellants.
No. 89-1083.

United States Court of Appeals,

Tenth Circuit.
May 14, 1990.

Susan M. Lach of Frey, Lach & Michaels, P.C., Fort Collins, for plaintiffappellee.
Kent N. Campbell of Anderson, Sommermeyer, Wich & Dow, Fort
Collins, for defendants-appellants.
Before TACHA, and BRORBY, Circuit Judges, and VAN BEBBER,
District Judge.*
BRORBY, Circuit Judge.

Appellants appeal the order of the United States District Court for the District
of Colorado denying their motion for summary judgment based on qualified
immunity.

Plaintiff-appellee Verna Lewis, a former Assistant City Manager of the City of

Fort Collins, Colorado (the "City"), brought this action alleging employment
discrimination against the City of Fort Collins and against appellants: several
present and former City Council members, the present City Manager and the
former Acting City Manager. Lewis, an Hispanic female over forty years of
age, alleges in her complaint that she was wrongfully demoted from her

position as Assistant City Manager and thereafter not considered for other
upper level positions in City government on the basis of her age, sex and race in
violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
Sec. 621 et seq., the Equal Opportunity Act of 1972, Title VII, 42 U.S.C. Sec.
2000e, the Civil Rights Act, 42 U.S.C. Sec. 1981, respectively, and that she was
deprived of due process and equal protection in violation of the Fourteenth
Amendment to the United States Constitution and 42 U.S.C. Sec. 1983.
3

Lewis began a long career as an employee of the City in 1964 and thereafter
served in the capacities of clerk, secretary and city clerk. In 1980, Lewis was
named Assistant City Manager, with primary responsibility as liaison between
the City Council and the citizens of Fort Collins. In 1985, Lewis was
reassigned within the City Manager's office and given duties related to
intergovernmental relations and lobbying efforts. In August 1986, four months
after defendant Steven Burkett assumed the position of City Manager, Lewis
was informed that the position of Assistant City Manager was to be abolished.
Accordingly, Lewis was effectively laid off as Assistant City Manager
November 1, 1986, and she accepted a transfer to the position of Health and
Safety Manager.

In her complaint, Lewis alleges that between April and August 1986 appellants
met "to discuss the creation and implementation of a policy ... to remove older,
more senior employees from within the City Manager's office and other high
level positions within the city government and replace those employees with
younger male caucasian individuals." Lewis further alleges that she was
demoted from her position and then not considered for other vacant high-level
positions within City government in furtherance of this "policy."

Appellants filed a motion for summary judgment based on qualified immunity

before the commencement of discovery. The district court heard the parties'
arguments and denied appellants' motion in a ruling from the bench on March
2, 1989:

Well, the Court's of the view that there are sufficient indications in this record
of disputes of material facts, and sufficient questions of how those facts affect
the qualified immunity defense as well as other defenses, so that it would be
error at this point in the case to grant summary judgment.

Furthermore, it seems too early to grant summary judgment because there

hasn't been adequate opportunity for discovery to even establish what the facts
are and put people under oath and see what they say under oath subject to the

10-year penalty for perjury, is what they have said on affidavits prepared by
somebody else for them.
8

So the motion for summary judgment of the city is denied.

Similarly, the government official, defendants' motion for summary judgment

based on qualified immunity, is denied, but without prejudice to renew. The
existent fact, it's clear that there are no real disputes as to the facts, it appears to
me on the face of it there are likely to be disputes and there are disputes as to
material facts.

10

Appellants thereafter filed this appeal asserting that the district court
improperly ordered discovery and that the district court erroneously determined
that issues of material fact exist relative to appellants' entitlement to qualified
immunity. We agree with appellants and reverse.

I. JURISDICTION
11

At the threshold, we must address whether the district court's denial, without
prejudice to renew, of appellants' motion for summary judgment based on
qualified immunity constitutes an appealable decision under 28 U.S.C. Sec.
1291.

12

This court has previously determined that appellate jurisdiction is invoked

when a defendant asserting qualified immunity is faced with discovery that
"exceed[s] that 'narrowly tailored' to the question of qualified immunity."
Maxey v. Fulton, 890 F.2d 279, 283 (10th Cir.1989). As the Supreme Court
explained in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411
(1985), the doctrine of qualified immunity not only protects government
officials from the costs associated with trial, but also from "the other burdens of
litigation," which include " 'the burdens of broad reaching discovery.' " 472
U.S. at 526, 105 S.Ct. at 2815 (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). Qualified immunity is not a
shield from all discovery. Maxey, 890 F.2d at 282. In some cases, discovery
may be necessary to determine whether the defendants' challenged conduct
violated clearly established law and thus, whether defendants are entitled to
qualified immunity. However, until the threshold immunity question is
determined, discovery shall be limited to resolving that issue alone. Id. at 283;
Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738.

13

Based on the record before us, the order of the district court does not limit

discovery to the resolution of the qualified immunity issue. As such, defendants

have been denied their entitlement to be free from the burden of overbroad
discovery. Accordingly, we have jurisdiction over this appeal.
II. ANALYSIS
A. Objective Reasonableness
14

Government officials performing discretionary functions are entitled to

qualified immunity insofar as their conduct does not violate "clearly established
statutory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. Harlow
crafted this "objective reasonableness" standard for determining the availability
of the qualified immunity defense in order to "avoid excessive disruption of
government and permit the resolution of many insubstantial claims on
summary judgment." Id. However in some cases, the determination of the
"objective" reasonableness of an official's conduct rests on establishing whether
the defendant acted with an impermissible motive or intent--a highly
"subjective" factual element. Such is the case here. For Lewis to succeed with
any of her statutory claims of age, race and sex discrimination and with her
constitutional equal protection claim brought under Sec. 1983, she must
ultimately prove the essential element of intentional discrimination.1 Absent a
discriminatory motive or intent, appellants' challenged conduct would not
violate clearly established law.

15

Where a defendant's subjective intent is an element of plaintiff's claim and the

defendant moves for summary judgment based on qualified immunity, the
defendant must make a prima facie showing of the "objective reasonableness"
of the challenged conduct. Pueblo Neighborhood Health Centers, Inc. v.
Losavio, 847 F.2d 642, 649 (10th Cir.1988); Martin v. D.C. Metropolitan
Police Dept., 812 F.2d 1425, 1434 (D.C.Cir.1987). In this regard, we have
emphasized that the moving party has no burden to disprove any unsupported
claims of his opponent, especially where, as here, " 'the reasons for swiftly
terminating insubstantial lawsuits are particularly strong.' " Losavio, 847 F.2d
at 649 (quoting Martin, 812 F.2d at 1434).

16

In support of their motion for summary judgment, defendants have submitted

affidavits and attachments for the purpose of establishing the objective
reasonableness of the decision to eliminate Ms. Lewis' former position of
Assistant City Manager. Again, in light of the statutory and constitutional
discrimination claims asserted, appellants' challenged course of conduct would
be objectively reasonable if it was carried out for non-discriminatory purposes.

The affidavit of City Manager Steven Burkett states that the City reorganized
its staff and eliminated Ms. Lewis' position because the City faced a budget
crisis in 1986. Burkett's affidavit sets forth the following description of the
reorganization process and the decisions driving the changes made:
17

Upon my arrival as city manager in April, 1986, I was made aware that the city
faced a severe financial crisis due to expenditures exceeding revenues, and a
corresponding reduction in general fund reserves.

18

Further study by city financial staffers revealed that, due to accounting

discrepancies, the projected shortfall in revenues was not as large as initially
projected, however, it was recognized and brought to my attention that the city
had incurred additional expenditures, particularly long-term expenditures, that
were initially not taken in consideration in the projected budgets, including
approximately $400,000.00 annual bond financing for the next several years to
retire the debt on the city's golf course and approximately $300,000.00 annual
debt reduction in connection with the Downtown Development Authority. The
projected additional long-term debts essentially canceled the additional
revenues.

19

In view of these projected losses, I implemented, at the direction of City

Council, a plan to reduce expenditures and balance the budget which included,
among other steps, a reorganization of the city's organizational structure; the
effect of this reorganization was to consolidate departments of city government
to reduce the span of control of the city manager and to put related functions
together to promote efficiencies and cooperative effort. The reorganization was
also necessary to reduce the number of department heads reporting to the city
manager and otherwise streamline and make more efficient the operation of city
government by eliminating unnecessary positions. In addition to implementing
the reorganization, the city (a) refinanced $30 million in debt; (b) initiated an
early retirement program; (c) transferred street lighting from the general fund to
the light and power fund; and (d) ordered all city departments to reduce their
1986 budgets by five percent and their 1987 budgets by an additional five
percent.

20

As documentary support, the attachments to Mr. Burkett's affidavit include the

City's organizational charts both before and after the reorganization and a list of
the ten employees laid off during the reorganization. Of these ten employees,
five were male, eight were Caucasian and four were under the age of 40.

21

Burkett's affidavit also asserts that, prior to instituting the layoffs, Burkett met

with all city department heads to determine the job classifications "which least
affected the direct provision of service to the citizens of Fort Collins in an effort
to target those positions which would be subject to elimination." The
occurrence and purpose of these meetings is supported by various affidavits of
other defendants and other affiants. As a result of the meetings, Burkett
"concluded that the role of assistant city manager was somewhat undefined and
that its elimination would not unacceptably detrimentally impact upon the
direct provision of service to the citizens, and accordingly decided that the
position should be eliminated."
22

To demonstrate the City's financial condition as of March 1986, defendants also

present the affidavit of Alan Krcmarik, the present Director of Finance for the
City, and the Director of Budget and Research for the City in February 1986. In
his former position, Krcmarik was in charge of preparing budgets for the City
and doing research and analysis of the City's financial situation. Krcmarik's
affidavit tends to support Burkett's description of the City's need to reduce
costs. His affidavit and the attachments thereto assert that in the Spring of 1986,
the City "faced serious long-term budget problems." For the year 1985,
Krcmarik's figures showed a deficit of approximately $600,000 in the City's
general fund, and as of March 1986, projected deficits in the general fund of
approximately $1.5 million for 1986, $2.9 million for 1987 and $2.5 million in
1988.

23

Ms. Lewis, through her affidavit and attachments, has attempted to rebut
appellants' above proffered justifications for the elimination of her position. As
to whether the City faced a budget crisis in 1986, Ms. Lewis presents
newspaper clippings from 1988 showing that the City had received income in
1988 from "unexpected" sources. This evidence simply is not relevant to the
question of whether the City officials believed the City to be facing a budgetary
crisis in Spring 1986. The projections of the City in 1986 may have been
inaccurate for failing to foresee a revenue windfall in 1988, but the appellants
have demonstrated that the figures relied upon in Spring 1986 projected
substantial deficits for the general fund over the next three years. Ms. Lewis has
produced nothing to rebut this contention. Additionally, she has produced no
evidence to rebut the contention of appellants that the functions of her former
position made that position a prime candidate for elimination during the
reorganization.

24

Appellants have also submitted affidavits with attachments for the purpose of
showing the objective reasonableness of their actions in not appointing Ms.
Lewis to other top-level positions after her demotion. Mr. Burkett asserts that
because of Ms. Lewis' long history of service to the City, he attempted to find

some other satisfactory employment for her within City government. In the
letter Burkett sent to advise Lewis of her layoff, he also offered her the position
of Health and Safety Manager, a position that she accepted and currently
performs. Burkett maintains that he personally considered Lewis for many of
the higher-level openings mentioned in Lewis' complaint. To that end, Burkett
spoke to then Mayor and City Councilman Kelly Ohlson and council members
Gerald Horak, Lawrence Estrada, Ed Stoner and Barbara Rutstein, and other
various members of city staff and department heads concerning Lewis'
qualifications. As a result of his discussions, Burkett concluded:
I25was made aware that although Ms. Lewis had performed satisfactorily as a clerk,
then secretary and later as city clerk, she was perceived as not having performed
very well as council liaison and as assistant city manager, due to a perceived attitude
problem and weakness in communications and interpersonal skills in dealing with
City Council and city staff. In particular, I was told that Ms. Lewis had a tendency to
"talk down" to or "tell off" City Council members if they asked what appeared to
Ms. Lewis to be too many questions or expressed views not consistent with her own
and that the quality of her work did not meet expected standards.
26

As a further result of this investigation, I was informed that Ms. Lewis lacked
credibility with department heads and City Council members.

27

....

28

Based upon the information available to me through my numerous

conversations.... I decided that Ms. Lewis' qualifications and weaknesses were
not appropriate for the positions of Director of Administrative Services,
Director of Utility Services and Deputy City Manager.

29

It was on this basis and none other that I decided not to extend an offer to Ms.
Lewis to fill any of those positions requiring extensive interpersonal dealings,
supervision of staff, and, in the case of Deputy City Manager, extensive
interaction with City Council.

30

The content of Burkett's discussions with the former mayor and city council
members is corroborated by the affidavits of all the persons named by Burkett.
Former Mayor Kelly Ohlson's affidavit states that he "found [Lewis'] work
performance to be inadequate" when Lewis served as council liaison:

31 position of council liaison was a key position and constituted the main point of
The
public contact between the city council and the citizens of Fort Collins. Ms. Lewis'
job involved handling inquiries and complaints from the citizens and preparing

responses on behalf of city council and the mayor. Her responses were often
incomplete, inaccurate, grammatically incorrect, and even at times insensitive to
citizen concerns. Ms. Lewis often seemed "put-out" that some requests had been
made of her by city council.
32

....

33

I was also not pleased with Ms. Lewis' performance as a lobbyist in handling
intergovernmental relations when she was transferred from the position of
council liaison to one of responsibility for intergovernmental relations and
lobbying efforts.

34

The affidavits of Rutstein and Horak strike a similar chord of dissatisfaction

with regard to the quality of Lewis' performance in the positions of council
liaison and Assistant City Manager. Additionally, the affidavits of Estrada and
Stoner state that, although they did not take negative positions regarding Lewis'
work when approached by Burkett, they were aware that other council
members were dissatisfied with her job performance.

35

Again, Lewis' affidavit attempts to rebut appellants' showing. Specifically, she

contests appellants' position that her previous work in high-level positions (as
Assistant City Manager and council liaison) was unsatisfactory. In this regard,
Lewis' affidavit and the attachments thereto fall short of the mark. For example,
Ms. Lewis provides volumes of documentation relating to various performance
evaluations and pay raises throughout her career. However, most of the
favorable evaluations relate to periods before Lewis rose to the Assistant City
Manager position.

36

Based on all the foregoing, we conclude that appellants have made a prima
facie showing of the objective reasonableness of their challenged actions and
have produced enough evidence to require plaintiff to demonstrate that
summary judgment based on qualified immunity is inappropriate.

B. Additional Discovery
37

Once a showing of objective reasonableness is produced, "the plaintiff may

avoid summary judgment only by pointing to specific evidence that the
official's actions were improperly motivated," Losavio, 847 F.2d at 649,
thereby establishing the existence of a genuine issue of fact for trial. See also,
Polenz v. Parrott, 883 F.2d 551, 554 (7th Cir.1989) ("at the summary judgment
or directed verdict stage ... the court must determine whether the plaintiff has

factually supported the allegations as to the state of mind element.") In the

alternative, a district court may defer a ruling on summary judgment pending
additional discovery when the affidavits of the party opposing the motion
indicate that "the party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition." Fed.R.Civ.P. 56(f).
38

Accordingly, we must first decide whether the district court correctly

concluded that it was "too early to grant summary judgment because there
hasn't been adequate opportunity for discovery." A district court has discretion
to determine whether to allow additional discovery following the filing of a
Rule 56(f) affidavit and the Rule 56(f) affidavit "should be treated liberally
unless dilatory or lacking in merit." Patty Precision v. Brown & Sharpe Mfg.
Co., 742 F.2d 1260, 1264 (10th Cir.1984). However, the district court's
discretion is not without bounds, particularly when the summary judgment
motion is grounded on a claim of qualified immunity:

39 56(f) discretion must be limited when a summary judgment motion is based on

Rule
qualified immunity because insubstantial lawsuits 'against government officials
[should] be resolved prior to discovery and on summary judgment if possible.'
Anderson v. Creighton, 483 U.S. 635, 640 n. 2 [107 S.Ct. 3034, 3039 n. 2, 97
L.Ed.2d 523] (1987) (emphasis added); .... Liberal application of rule 56(f) should
not be allowed to subvert the goals of Harlow and its progeny.
40

Jones v. City and County of Denver, Colo., 854 F.2d 1206, 1211 (10th
Cir.1988). Accordingly, in response to a summary judgment motion based on
qualified immunity, a plaintiff's 56(f) affidavit must demonstrate "how
discovery will enable them to rebut a defendant's showing of objective
reasonableness" or, stated alternatively, demonstrate a "connection between the
information he would seek in discovery and the validity of the [defendant's]
qualified immunity assertion." Id. (emphasis added). To that end, it is
insufficient for the party opposing the motion to merely assert that additional
discovery is required to demonstrate a factual dispute or "that evidence
supporting a party's allegation is in the opposing party's hands." Id.; Patty
Precision, 742 F.2d at 1264.

41

Plaintiff here has failed in her brief or affidavits in response to defendants

motion for summary judgment to demonstrate how discovery will raise a
genuine fact issue as to appellants' qualified immunity claim. In her brief in
response to the motion for summary judgment, plaintiff asserts that there has
been "insufficient time for discovery" and that "[t]he parties have not begun the
discovery process." Thus, plaintiff argued that appellants' motion for summary
judgment was "premature" and "improper." Within the affidavit itself, plaintiff

repeatedly asserts that she "will be able to show" certain facts relative to her
claims of discriminatory animus on the part of City officials. These inspecific
references are simply insufficient to meet Rule 56(f) muster when defendants'
claim of qualified immunity is at issue. Plaintiff has not attempted to
particularize her request for discovery. She has not explained how any specific
documents or depositions will aid in rebutting defendants' showing of objective
reasonableness. Rule 56(f) is not a license for a fishing expedition, especially
when summary judgment is urged based on a claim of qualified immunity.
Accordingly, we hold that the district court abused its discretion in deferring a
final ruling on defendants qualified immunity claim pending discovery.
C. Summary Judgment
42

As we stated earlier, once a showing of objective reasonableness has been made

and further discovery is denied, plaintiff may avoid summary judgment only by
producing specific evidence that appellants' actions were tainted by a
discriminatory motive. Losavio, 847 F.2d at 649. In reviewing a summary
judgment determination, we apply the same standard employed by the trial
court under Fed.R.Civ.P. 56(c).2 Osgood v. State Farm Mut. Auto. Ins. Co.,
848 F.2d 141, 143 (10th Cir.1988). When a properly supported motion for
summary judgment is made, the party opposing the motion "must set forth
specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(c). "[S]ummary judgment will not lie if the dispute about a material fact is
'genuine,' that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

43

In response to defendants' showing of objective reasonableness, Ms. Lewis has

produced an affidavit with a great number of attachments. However, despite the
volume of information produced, Ms. Lewis has failed to produce any specific
evidence of a discriminatory motive on the part of appellants in eliminating her
former position or in not appointing her to other high-level positions. The
affidavit's statements regarding discrimination can only be characterized as
conclusory allegations. Repeating the allegations of the complaint, Ms. Lewis
asserts that:

44 Burkett was hired by the City Council ... because of his reputation as a manager
Mr.
who gets rid of older, more senior employees from within the city government,
thereby saving money. He then replaces those employees with younger, male
caucasian individuals who are compatible with his philosophical concepts and the
concepts of the City Council.... I was involved in many discussions, both formally
and informally, about this philosophy.

45

The City Council members named as defendants in this matter all agreed with
that philosophy and were the decision makers in hiring Mr. Burkett and giving
him the full power and authority to implement a clearly discriminatory policy,
in cooperation with Defendant Richard Shannon, acting City Manager.

46

Lewis does not direct the court to any specific evidence to support these
allegations. The only evidence relevant to Lewis' claims of discrimination is the
circumstantial fact that many of the available higher-level positions were
eventually filled by white males under the age of forty. (At least two high level
positions were eventually filled by a Black female and a Caucasian female.)
However, the burden placed upon the nonmoving party at the summary
judgment stage to demonstrate a genuine issue of fact goes beyond the burden
of producing "some evidence." A reasonable jury could not find discriminatory
purpose based on this evidence alone.

47

Accordingly, we hold that plaintiff has failed to produce specific evidence of

discriminatory purpose on the part of appellants sufficient to survive summary
judgment. We therefore REVERSE the determination of the district court and
grant appellants' summary judgment motion based on qualified immunity as to
all of plaintiff's statutory discrimination claims and as to her Sec. 1983 equal
protection claim.

48

Plaintiff has also alleged a due process violation in the complaint. Although the
contours of plaintiff's due process claim are not readily apparent to this court,
we find no indication in the record that appellants have moved to dismiss this
claim and find no mention of the due process claim in appellants' motion for
summary judgment based on qualified immunity. Accordingly, we take no
action relative to the due process claim and REMAND for further proceedings
related thereto.

The Honorable G. Thomas Van Bebber, United States District Judge for the
District of Kansas, sitting by designation

To prove intentional discrimination under the ADEA, the plaintiff must show
that age was a "determinative factor" in the defendant employer's action toward
the plaintiff. Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1400 (10th
Cir.1988); Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th
Cir.1988). "Proof of discriminatory motive is critical" to prevailing in a
disparate treatment action brought under Sec. 703(a) of Title VII, 42 U.S.C.
Sec. 2000e-2(a). International Brotherhood of Teamsters v. United States, 431

U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Bauer
v. Bailar, 647 F.2d 1037, 1044 (10th Cir.1981). A Sec. 1981 claim always
requires purposeful discrimination. General Bldg. Contractors Assoc. v.
Pennsylvania, 458 U.S. 375, 386-88, 102 S.Ct. 3141, 3147-49, 73 L.Ed.2d 835
(1982). Finally, the requirements for establishing a Sec. 1983 claim are the
same as those for establishing the underlying constitutional or statutory
violations, Baker v. McCollan, 443 U.S. 137, 140, 144 n. 3, 99 S.Ct. 2689,
2692, 2694 n. 3, 61 L.Ed.2d 433 (1979), and purposeful discrimination is an
essential element of an equal protection violation. Batson v. Kentucky, 476
U.S. 79, 93, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69 (1986)
2

Rule 56(c) reads, in pertinent part:

The adverse party prior to the day of hearing may serve opposing affidavits.
The judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.